Protected conversations 


In 2013, the law changed to introduce a new legal concept widely referred to as the “protected conversation”. The new rules make it easier for employers to have conversations with employees about ending their employment without risking an unfair dismissal claim. There is a statutory Acas Code of Practice: Settlement Agreements under section 111A of theEmployment Rights Act 1996 (www.acas.org.uk/media/pdf/e/3/Acas-Code-of-Practice-on-Settlement-Agreements.pdf).


The “protected conversation” regime applies only to ordinary (not automatic) unfair dismissals, and to no other kind of tribunal claim (see Chapter 10: Dismissal). For example, it has no relevance to claims for discrimination, or to dismissals that relate to trade union membership or activity. 


Under the new rules, found in section 14 of the Enterprise and Regulatory Reform Act 2013 (ERRA 13), employees are not allowed to reveal the content of any protected conversation in a standard unfair dismissal claim before the employment tribunal unless there has been “improper behaviour”. The same rule applies to protected conversations initiated by an employee with their employer. These might include, for example, a confidential discussion initiated by an employee on long-term sick leave about the possibility of departure on agreed terms. Union members should involve their union rep in this kind of discussion.


This change to the law makes no difference to the established ban on without prejudice discussions being revealed to the tribunal, which continues unaffected, as explained above. 


The main difference between a “without prejudice” conversation and a “protected” conversation under the ERRA 13 is that a discussion can only be without prejudice if there is already a dispute between the parties at the time of the confidential discussion. In other words, it is not possible to spring a without prejudice conversation on an employee entirely without warning and still maintain its confidential status before the tribunal. This is not the case with a “protected conversation”.


The obvious scope for abuse of a regime of this type has led to a tightly drawn Acas Code of Practice. The restrictions contained in the Code may deter many employers from relying on these new laws. In particular: 


• the Code says that employers must allow an employee reasonable time to consider any agreement reached following a protected conversation. At least 10 calendar days are recommended for considering any formal written agreement and taking independent advice; and


• the Code says it is good practice to have a face-to-face meeting at an agreed time and place to discuss the settlement terms and to allow employees to be accompanied to the meeting by a trade union official, union rep or work colleague. Although not a legal requirement, this practice may “help to progress settlement discussions,” says Acas. 


If asked to participate in one of these discussions, members should ask to be accompanied by their rep and ask for a copy of any note made during the meeting. 


If an employee suspects they are being targeted for an automatically unfair or discriminatory reason, such as age, pregnancy or trade union-related activities, they should consider raising this early. The rules protecting a conversation from disclosure to an employment tribunal only apply to a straightforward unfair dismissal claim, not to an automatically unfair or discriminatory dismissal.